Kwe Kwe, tansi, hello. Thank you, Senator Arnot, for recognizing the land that we are on today, and thank you to the committee for the invitation to appear before you to talk about this important legislation to amend the First Nations Fiscal Management Act.

We have been engaging with Indigenous partners, some of whom are present today, for some time on this particular legislation, and the main message we hear is to hurry up and get it done.

This act came into force in 2006, and to date 348 First Nations have chosen to participate, providing them with a framework to assert their jurisdiction in financial management, taxation and access to capital markets. The key word here is choice. First Nations participating in the act have better access to capital, more fiscal powers and better financial management systems. As a result, they’re growing their economies and improving socio-economic outcomes for their community members.

Over time, First Nation signatories and the First Nations-led institutions established by the act — namely, the First Nations Financial Management Board, also known as FMB, the First Nations Tax Commission, or FNTC, and the First Nations Finance Authority, also known as the FNFA — have identified numerous ways to improve the act.

[Translation]

The proposed amendments would expand and modernize the mandates of the First Nations Tax Commission and the First Nations Financial Management Board to better reflect their current and future activities. They would establish a First Nations Infrastructure Institute that would provide First Nations and other interested Indigenous groups with tools and support to implement and manage their infrastructure. They would also provide First Nations who are participating in the act with the power to make laws to regulate services provided by or on behalf of the First Nations.

These amendments are being proposed during an important moment in Canada’s process of decolonization. As you know, the United Nations Declaration on the Rights of Indigenous Peoples Act came into force in June 2021, following this committee’s thorough study of Bill C-15. Our government as a whole is working with First Nations, Inuit and Métis to implement the United Nations Declaration, and consultations with Indigenous partners have led to the development of a draft action plan.

Some action plan measures identified for my department to work on with partners, such as the FNFMA, include amendments to the Fiscal Management Act and implementing the right to self-determination.

The proposed amendments we’re talking about today are key to this work. They would align with the United Nations Declaration, and the Truth and Reconciliation Commission Calls to Action, since they support a fiscal relationship that promotes economic development and Indigenous governance through institutional development.

[English]

Before I finish, I’d like to provide some examples of how this act promotes social change with some stories about First Nations in British Columbia.

Neskonlith First Nation financed a daycare centre that offers Secwepemc cultural activities as its core programming and is open to children of all backgrounds. The circular design is like a traditional winter house, a kekuli, but it acknowledges how children are in the middle to nurture and to be raised in a good way.

’Namgis First Nation achieved Financial Management Systems certification in April 2021, which strengthened their governance capacity. By developing their financial administration law, ’Namgis has more flexibility in regard to meeting the financial and social needs of their community.

Communities are also using financing to build renewable power projects. For example, Sts’ailes First Nation and Taku River Tlingit First Nation have constructed run-of-river electricity generation stations. This will help these communities transition to a more sustainable economy.

These are just a few examples, and they exist across Canada of the ongoing work supported by FNFA. It is clear that updating this act will accelerate social change because it puts a number of these instruments directly into the hands of First Nations, as you’ll hear from the folks behind me. The proposed amendments we are discussing are an important part of supporting the self-determination in order to build an economy that works for Indigenous communities. In order for Canada to work for everyone, we need an economy that allows prosperity for all, and often that word is used in exclusion of First Nations, Inuit and Metis. In this case, it isn’t.

Meegwetch. Thank you.

This is a very important question. I think the conclusion and answer to that is that these institutions aren’t going anywhere, and their success is proof of that. I know I noted at the beginning that 348 First Nations have been scheduled to the act, and 77 of those have accessed that $1.6 billion in financing that has put Indigenous big business on the map, which is nice to see across the country.

We’re dedicated as a country and as a government to support all of these institutions with regular, recurring funding. They are often subject to periodic financing reviews. That is work we need to continue on an ongoing basis.

I’ll allow Chris Duschenes, perhaps, to add to that. The total funding is about $66.7 million currently. I think, importantly for the institution, the most important part of this new legislation is the First Nations Infrastructure Institute, also known as FNII, and $12.4 million over three years.

In terms of A-Base funding, I don’t think we are there yet. That is the case for many institutions across government, but I would let Mr. Duschenes qualify that.

How these two institutions work together will be a test of their individual successes. In the past, we’ve seen the focus of the Canada Infrastructure Bank, I think, unfortunately be on larger projects, and, by their own definition, that has excluded Indigenous projects. Over the last few years, you’ve seen the Canada Infrastructure Bank adapt — and there are a number of examples that we could provide — to support smaller Indigenous-led projects.

I think the fact that the First Nations Infrastructure Institute — I know Manny Jules behind me is probably jumping to answer this question, so perhaps one of you will ask the same question to him. How they work, really, is not up to the Government of Canada, but I think seeing the need for an infrastructure institute that is focused on Indigenous projects, whether they are ones that are viable on the market or not, is important, because what we’re trying to do is not replace but offer alternatives to a grant-based model, which in and of itself cannot close the infrastructure gap that we see across the country.

Always in these projects, the issue of trust is important, so people seeing themselves in the members of the First Nations Infrastructure Institute that will be supported here is important; whereas, they would not, perhaps, see that with respect to the Canada Infrastructure Bank, regardless of their different and diverging mandates. Frankly, I think, as an editorial note, the current Canada Infrastructure Bank could do a better job at tailoring their needs to Indigenous realities. There is room for cooperation, and hopefully they won’t be tripping over themselves, but I think fundamentally at the base, they do have different mandates.

It would be important for Manny Jules or Harold Calla to pick up on that. There are, sadly, across the country a number of projects with millions of dollars in assets that are just sitting on the ground, so that trust component and the ability to manage projects could be one of the areas where the First Nations Infrastructure Institute could play an important role.

Senator, that’s a great question. I’ll pass it over.

I’ve never had to apply.

We want to make it not burdensome, obviously, and there are criteria that apply. “Choice” is the key word. The suite of tools offered by these important institutions are not for everyone. There are philosophical differences that a number of communities do have. They are not necessarily based on capacity, and some just don’t want to be part of it. A lot have, and a lot are striving to, and it is important that we support them. I wanted to underline that before I pass it over to Chris Duschenes, because it isn’t for everybody, but it is a matter, fundamentally, of choice. No one is being forced.

As a general point, there is actually a very important summit in Ottawa taking place specifically on bylaw enforcement across Indigenous communities. I think the general conclusion — or, at least, the working premise of people going into these meetings — is that apples to apples, Indigenous community to non-Indigenous community with the same type of bylaws, one will be enforced robustly, more often than not in the non-Indigenous community, and less so in the others, for no particular reason. There is nothing in theory prohibiting enforcement under the Indian Act that is a cause for this.

It is jurisdictional wrangling. It is solicitors general tripping over each other and refusal of local enforcement bodies to enforce bylaws.

This is a financial subset of bylaws that are encompassed in this suite of legislation, ones which people are voluntarily subscribing to because they are driven by the communities themselves under the tools that exist under this body of legislation; it allows better enforcement and better efficiency of the actual bylaws. We’re talking about financial instruments. There are recourses if you fail to follow bylaws for the benefit of the institutions that are advancing the money.

In my mind, this is a very small example of how self-determination works, because it is voluntary. It is choice-based. You have a suite of predictable bylaws that are, again, financial in nature that people are voluntarily agreeing to. If it is not followed, there are consequences that exist under any financial institution in its ability to call loans or to make sure that provisions are adhered to.

Again, it is a small example of the problem of enforceability of bylaws across Indigenous communities. I wouldn’t suggest that this could work for every single situation where a bylaw is not being enforced. For example, there are issues in and around policing that will be the greater subject matter of the conference that is happening this week. It is a very large one. It is a huge issue in Indigenous communities.

When it comes to clean drinking water, there is not only a moral imperative, as you said, but a legal one. We have said to Indigenous communities that we are going to get the job done.

What we’ve seen over the course of the last few years is how complex water is. It may seem simple in a lot of people’s mind. You cannot fly in with the army a reverse osmosis machine, and magically things are done. It requires real work within the community to go in and say what is the problem?

There are a variety of examples where simply lifting the boil-water advisory does not address the issue of clean water in the community, whether it’s hook-ups to individual homes, real fear of the actual clean drinking water that is coming out, which is not to be understated.

There are communities that have had decades and decades of fear toward the water because they’ve been on boiled drinking water. Simply lifting it over a period of a year doesn’t change the fact that people still revert to bottled water.

It is multifaceted. It is complex. The reality of all this, you’ve seen it in the various Auditor General reports, is that you can dedicate the capital to building new water plants; it doesn’t, by virtue of that same statement, guarantee the lift the boil-water advisory, which is a choice and a decision made by communities.

It is why, for a number of reasons, we have expanded the infrastructure envelope, to make sure that we are having a more comprehensive approach to lifting boil-water advisories, which includes training and properly funding Indigenous water operators.

There was an 80-20 model that we used previously that is now 100% fully federally funded. It is expensive, but it is the right choice, because those people are the pride of their communities. They can easily be poached by a non-Indigenous community to work in their plant for a much higher salary, and why wouldn’t they? It shouldn’t be a question of water poverty and forcing people into a particular situation; this is about making sure there is a comprehensive approach to getting clean water coming out of the taps.

One of the largest class-action settlements in Canada that is seldom talked about is the safe drinking water class action that provides a multi-billion-dollar settlement for those who have been affected by not having clean water in their communities, but also provides a multi-billion-dollar investment over a number of years, speaking to that resting reassured that there will be investments in the communities.

As part of that settlement, there is an envelope that is forward-looking for communities who are looking for infrastructure and investments into their communities for safe drinking water. We’re down to the short strokes in and around northern Ontario with about two dozen communities who still have boil-water advisories.

Since the beginning of 2015, there have been 130 boil-water advisories lifted. It is something that is significant. Again, we won’t be happy until it’s all lifted.

Yes, it is.

Senator McCallum, it’s an excellent question. I think when people talk about enforcement, they can mean a number of things. Is it the court system that underserves Indigenous peoples that cannot enforce the issuance of a summons or of a citation under a particular band council bylaw?

Is it the local police of jurisdiction, which is often provincially administered, that refuses to go into a community, sometimes with respect to the grave violation of a quasi-criminal or criminal-type bylaw, even criminal enforcement for that matter which is not an issue for bylaws?

Is it the ability to enforce and give teeth to the laws that exist under a particular set of legislative tools like this one? The team can speak about how that would work, other than those that start to look like quasi-criminal or criminal-type summons. Some of the modifications you have proposed, I wouldn’t suggest being the only ones if we were to make changes, because a lot has to do with that jurisdiction overlapping and these grey areas that have been created and are often not the fault of Indigenous communities.

I sometimes think it’s quite clear where enforcement can occur and should occur, and it doesn’t because people refuse to do that. This is work that we need do with the solicitors general in the provinces, and work that will we’ll be discussing this week at the summit, in fact, dealing with enforcement of bylaws and enforcement generally.

How this would work under the act, as I mentioned earlier in my response to Senator Martin, is that there are a number of recourses that the institutions or the band council could take if there is an inability for individual members to comport themselves according to the terms of the bylaws.

Often the argument has been that when it comes to banishment or preventing people from going into the communities that there are constitutional issues around that. It’s a gross mischaracterization of the scope of the problem.

What we saw during COVID is that you could impose a curfew — whatever you thought about it — in downtown Montréal, but you couldn’t necessarily have band council bylaws that were creating access points into communities or a systematized way of screening people be enforceable and you had to rely on a few burly people standing on the road going into the community essentially saying that we’re the local community members who are trying to protect our own people. That’s not an ideal way of making sure people respect it.

It wasn’t only just the risk of COVID or people passing through for whatever reason, it also had to deal with drugs and supply of drugs as well. That’s a larger issue that is actually resulting in deaths in communities, which is in part due to the inability to enforce bylaws. It is a serious issue.

There’s a small one and a big one. The small one is actually also a big one, because I have been a big cheerleader for the First Nations Infrastructure Institute for years and I’m also disappointed. There are reasons for that, the historic response to COVID and priorities that financially go in different directions, but it was frustrating not to see a dedicated First Nations Infrastructure Institute supported by the government until a few years ago. I was happy for Manny Jules and for the team who put so much work and thought into it. There’s a role here to — not move away from it, because the grant-based model is not going to go away, there is too much of an infrastructure gap in Canada to support any argument to the effect that we have to keep investing, and some projects aren’t viable without a direct infusion of cash and they are game-changers in communities. But there is a role for a First Nations-led institute to be part of this and be driving this. If closes that lack-of-confidence gap so that there is a little more trust in getting projects done in the sense that these aren’t federal government ideas of the day but one’s coming from communities. I am really happy for that.

Conceptually, when you talk about these — and I’ll joke a bit about it — the leader of the opposition said this was the first common sense set of legislation the government had done, which immediately made me question whether we’d done the right thing. Anyway, I think you all know what I am talking about. It’s nice to have the endorsement of all of the parties, frankly, and for this to be a less partisan thing.

The reality is that this is not something for everyone. This is very much a western-based form of leveraging capital, and when you talk about some of the challenges that we face as a government on profound issues — even the Supreme Court of Canada has struggled with this. They have said the title exists but not what it consists of, other than broad brush strokes. When you talk about reconstituting Indigenous laws, identities and ways of being, there are few examples where that has congealed into an enforceable set of laws that is truly Indigenous-led and Indigenous-based that is different and distinct from the Western model, because we have spent our entire historical existence trying to crush those models with various levels of success.

I think reconstituting those laws and supporting communities that are reconstituting their own idea of land, identity and title, with some cutting-edge work being done to the credit of Indigenous communities in B.C. and, frankly, across Canada. Communities know what the land is, they know who the custodians of the land are, but legal enforceability as we would use in our models has been non-existent and to the detriment of the communities.

There is real suspicion that this is an attempt to municipalize, for example, the type of relationship and move away from a nation-to-nation relationship. I think when you realize that this is an issue of the fundamental choice of communities, it has to remain an element of choice. I deeply respect those communities that choose not to do so, and I also respect those who have put a lot of work into making sure that they are trying to advance their communities and the prosperity of their communities. Trying not to shove a square peg into a round hole has been, I think, the real challenge in making sure that we are putting together a suite of legislative options that don’t have to be followed, but if they are, can contribute to Indigenous excellence and there are some really neat examples of Indigenous prosperity around the country.

In my job, I have to spend a good chunk of it questioning every single choice I make and every decision I make, wondering whether I am not recreating a social model that has been designed to oppress. Obviously, you always have to, but it’s a reflection anyone in my position needs to have as a sanity check.

To paraphrase my predecessor, Carolyn Bennett, it’s hard to mend what you can’t measure, and, clearly, in a lot of these so-called evidence-based approaches, the evidence is often quite thin.

I think the constant gathering of data — and there is a very important overarching discussion on Indigenous data sovereignty and the ability to control your own data over your own people that is an important element of it, but this, I believe, will enhance it.

The measures in these proposed amendments will allow more gathering of information to see whether these measures are truly efficient and whether they are working. We have certainly seen in taxation areas where things work, and things work less. That will be important for people to have that information and to gather that information with the tools that are in the proposed amendment so that they can measure and reassess, as the case may be.

In Indigenous communities, more so, perhaps, than — although, you hear it in non-Indigenous Canada that taxation is a hot issue, and it is something that we have to constantly measure to see its efficiency and desirability.

I think calling it a “miracle,” with all the work that has been put into it, it has been a lot of hard work, like you said, over almost two decades to get to a space where we are celebrating — as mentioned by Senator D. Patterson — Indigenous big business. There is a tendency to talk about Indigenous small and medium business in an almost belittling fashion, but Clearwater has put Indigenous big business on the map. There have been a couple of others. There are probably a couple that preceded it, but I have forgotten.

With record revenue and profit in Clearwater this year, you see Indigenous peoples can exceed non-Indigenous businesses, and that’s kind of cool to see, and I think it has been an inspiration to communities that don’t have fishing as part of their own livelihood, because they see some of their brothers and sisters across Canada that are really succeeding.

It’s not for everyone, but when you ask me about where I see green shoots, you see them in areas that you wouldn’t necessarily expect as government, and nor should you, because the government dictating the pace has had repercussions that have been measurably poor.

For example, when we make large legal settlements with communities for historic harm, I have often heard — and you expect to not talk to people for a few weeks as they celebrate something that is really transformational for their community, but sometimes the next thing you hear is, “Well, how do we move on self-governance, and how do we move on a modern treaty to really embody our relationship and move forward?” Because that historical trust gap has been bridged through a settlement of a claim, for example, that has sometimes been unresolved for a hundred years.

So there are offshoots. When you see these large sums of money being resolved for years and years of harm, these aren’t one-offs, and they do spring trust in a relationship, and they do propel discussions about self-governance and about autonomy, which is at the heart of this, people taking care of their own. And we’ve seen as a proof point through COVID that when Indigenous communities have the resources, they can have better results in fighting something like a historic pandemic than we have for the rest of Canada, and that is demonstrably proven by statistics when you look at mortality rates.

They are occurring all over the spectrum of Indigenous engagement. Where I would like to see more work being done — and I think the Minister of Justice would agree with me — is on Indigenous justice, and that’s something where you see a lot of demand and a lot of work being done.

I think you described it well; you do see shoots popping up.

I have a cabinet meeting, so I may get in trouble.

Thank you.

That is a good question, and I think we could probably spend a couple of hours on this, Senator Klyne, but this is self-determination in action. When you talk about a partner, and we talk about a nation-to-nation relationship and a partner like the Government of Canada, in the work that I do on a daily basis, paying bills that have been due for about a hundred years is very important in bridging the trust between Canada and a number of Indigenous communities. Indeed, this is something that we’re doing in record amounts, but it needs to be seen in that optic, because how do you trust a financial partner who doesn’t pay their bills? And that has been the story of Canada since the beginning of, in particular, the signing of the numbered treaties and with all the treaties that we have signed. It is something that has contributed to the undercapitalization of communities and their maintenance in poverty.

So when I talk about economic reconciliation, I am very conscious of the fact that it can’t be used as a catch phrase. For someone to walk into the most prosperous community in Canada and say, “This is how everyone else needs to behave,” it really has to be driven by communities themselves and work with the Government of Canada in an atmosphere of trust with the tools that are available and the tools that are being built by communities themselves.

It would be odd to see everything even across the country. People would probably scratch their heads as to why that is. There is a lot going on that, first and foremost, starts with Canada recognizing its historical duties to Indigenous communities, but also making sure that they do have, apples to apples, the levers available for them to thrive, whether that’s breaking down barriers or truly respecting Supreme Court decisions when you talk about moderate livelihoods or all of the instruments that are available to them under treaties that have not been respected; also, financially with respect to instruments where they do not have access to capital that would be available to people simply by virtue that they are non-Indigenous.

That is some of the discussion we have had in and around the Canada Infrastructure Bank, and how it would mesh with the First Nations Infrastructure Institute and how that is perceived, generally, in the public eye. You touched on that when you asked your question.

A number of communities in and around Canada are drivers of economic activities for the non-Indigenous communities around them and not the reverse. That is important to know. They are large employers of non-Indigenous people; that is no truer than in the Clearwater case that we have talked a lot about today. The more we do that, the more we see the interconnectedness of our economies and opportunities for communities to thrive.

In the role that I play, and the role that Minister Hajdu plays, it starts with basic notions of a just and fair country. When we’re talking about what Minister Hajdu’s role is in Indigenous Services, making sure that the education levels are those that are at or exceeding those of non-Indigenous communities in Canada. They are profound socio-economic issues that can’t be separated for the general discussion about simply economic reconciliation.